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San Jose Estate Law Blog

Requirements for a valid will

Many California residents have an estate plan to ensure their belongings go to their family, friends and charities after they die. If you have a loved one who changed their will frequently, or shortly before they passed away, it may be unclear if the document reflects his or her wishes. At Temmerman, Cilley & Kohlmann, LLP we often assist clients who dispute the validity of a will.

FindLaw states that challenging a will is difficult. Most courts presume that the person who created the legal document was of sound body and mind. When contesting testamentary capacity, you must show that the individual did not understand the consequences of their actions.

Revocable and irrevocable trusts: What’s the difference?

Most high-asset couples already have a will in place, and several in California also have living trusts completed so that they can avoid the probate process, transferring assets sooner with smaller legal fees. If you haven’t set up a living trust, or know that your parents have one, you may not realize that living trusts can protect assets and their terms remain private information upon death (which probate does not).

Who should I pick to be my power of attorney?

A power of attorney is a representative you choose to handle financial and medical decisions should you become incapacitated. Making the right selection is crucial to ensure medical staff and family are fully aware of your decisions, while also making certain that these wishes are carried out appropriately. Very Well Health offers the following tips on how to choose the most suitable power of attorney. 

Being an effective communicator means you're able to convey information clearly and succinctly. This is especially important in an emergency medical situation, where decisions will need to be made rapidly as the patient's condition changes. Your power of attorney should be able to keep up with a quickly changing situation all while fielding questions from family and medical staff. The person will also need to be assertive when discussing your end-of-life plans with others. It can be intimidating to challenge medical staff, but it might be necessary if a doctor is suggesting a treatment goes against your wishes.

Defining the parent-child relationship

The inheritance rights of one's natural heirs through California's intestate succession guidelines have been detailed on this blog in the past. A decedent's children are entitled to a portion of their intestate estate if the children survive them. That is, of course, provided that they qualify as one's child under state law. 

Section 6450(a) of California's Probate Code states the obvious fact that one is child of their natural or biological parents (regardless of whether their parents were married). This entitles them to inherit assets through the state's intestate succession guidelines (again, regardless of their parents' marital status). Yet what happens if it is the other way around? Are there stipulations that must be met in order for a parent to qualify to inherit a child's assets? 

Challenging a will because of mental incapacity

As our parents and beloved family members age, it’s difficult to see their mental capacity decline. This can be problematic if the will was created or altered when the estate holder or testator was of diminished capacity. It can call the will into question, and the will may be challenged in court. 

When testamentary capacity is in question

Detailing your rights to temporary possession

Most in San Jose likely believe that they will have years to plan for their estates. Yet what happens if your spouse dies unexpectedly while still relatively young? Even in the event that you had both planned ahead and created estate planning documents, it is likely that you still have outstanding debts that those who pass on in their elder years might not have to deal with. You might be facing the potential of having to liquidate assets in order to settle your spouse's liabilities. Many in your same position come to us here at Temmerman, Cilley & Kohlmann, LLP wondering if that means selling their homes. 

Depending on the amount of debt you are left to deal with, it might. What, then, is to happen to you and your children? Are creditors able to come in and immediately force the sale of your home and other personal property, effectively leaving you on the street? According to Section 6500 of California's Probate Code, they are not (at least not in the immediate aftermath of your spouse's untimely death). In fact, this statute allows you to maintain the use of your spouse's home and personal property for yourself and your children up until the filing of the estate inventory and for an additional 60 days after that (additional time extensions may also be available through a petition to the court). 

Making changes to your will after a divorce

We recently wrote about some of the ways in which closing or launching a business can affect one's estate plan, but there are many other reasons why it may be necessary to go over your estate plan. For example, if you are in the middle of a divorce or you recently parted ways with your spouse, you may need to make key revisions to your will. There are a number of reasons why these revisions are so important and you may need to make multiple changes in the wake of a divorce.

For starters, many people give their spouse certain responsibilities and authority over their estate plan, and this may need to be revoked following a divorce. Other changes may need to be made when it comes to beneficiaries and the manner in which an estate is distributed. Not only do some people need to change their will to remove their ex as a beneficiary, but they may also need to remove other beneficiaries as a result of the divorce.

Revising your estate plan due to starting or closing a business

There are many different reasons why it becomes necessary for people to go over their estate plan, whether they split up with their spouse, they want to remove a beneficiary or they adopt children. However, business issues, such as starting or closing a business, can also necessitate the revision of an estate plan. Whether you are an entrepreneur who is excited to launch a new business or you have decided to shut down your business after years of operation, it is pivotal to be mindful of how this move could affect your finances (and your financial future) and why it is so crucial to make sure that you adjust your estate plan accordingly.

A number of matters may need to be taken into consideration if you are dealing with the closure or launch of a business you own. For example, you may need to consider how your business will be affected by an unexpected health crisis that you may deal with in the future, and whether your loved ones will be able to keep things moving forward smoothly. Or, your financial position may have changed considerably as a result of closing your business, and you may need to adjust your estate plan accordingly.

How do estate sales work?

When your parents move to an assisted living facility or pass away, you can be left with many personal items you have no room or use for. What can you do with the extra furniture, china and silver, clothing, jewelry and knick-knacks that your parents left behind? Like many California residents in the same situation, you can give these items to charity, put them in storage or haul them to the dump – or you can hold an estate sale.

What is an estate sale, you may wonder? According to HowStuffWorks, estate sales are a step up from a garage or yard sale. Often, the contents of a home are sold or auctioned off. It is not uncommon for high-end items to be listed in an estate sale. These sales are usually held after the owner of an estate dies, but if you have permission from your parents or if you have power of attorney, you may decide to sell their unnecessary items if they become incapacitated and will not use these possessions again.

What is a probate referee?

The estate administration process in San Jose can often become contentious. While you and all others who are party to an estate may start out with the stated intention of avoiding discord, you may be surprised at how quickly it can arise when people fear that their interests may be affected. One area that many may disagree over is in the valuation of an estate's assets. If you have been asked to serve as the executor of an estate, then you may feel overwhelmed at the prospect of trying to come up with an accurate appraisal on your own. Fortunately, you do not have to; the state will typically assign a probate referee to handle that task. 

What is a probate referee? It is a professional assigned by the county in which an estate is being probated (typically a lawyer, accountant or person with extensive appraisal experience) to come up with a reliable valuation of an estate's assets. A probate referee will evaluate everything from real estate and investment accounts to automobiles and art collections. According to the California State Controller's Office, probate referees are required to seek at least 15 hours of continuing education every year so that they can remain up-to-date with the latest appraisal techniques and consumer market trends. 

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